IN THE MUNICIPAL COURT OF THE CITY OF SEATTLE

KING COUNTY, STATE OF WASHINGTON

CITY OF SEATTLE, )

)

Plaintiff, )

) Nos. 286205, 284477, 299311,

vs. ) 284931

)

JOSEPH MANDELL, SOMATRA SEN, ) MEMORANDUM OPINION:

ROSS STEWARD, ) ADMISSIBILITY OF DRUG

) RECOGNITION PROTOCOL

Defendants. ) EVIDENCE

____________________________________)

These cases involve the prosecution of individuals charged in the Municipal Court of Seattle with operating motor vehicles while under the influence of intoxicants

other than alcohol, SMC § 11.56.020. The plaintiff seeks to admit at trial the testimony of police officers who have been trained pursuant to the Seattle Police Department's "Drug Recognition Expert" or "DRE" program. According to the city's offer of proof, the DRE officer would testify that s/he administered a twelve step drug recognition protocol and, after analyzing the results of this protocol, the officer's opinion is that the defendant's ability to drive was appreciably impaired by one or more drugs which may or may not include alcohol. The protocol consists of (1) a breath alcohol test pursuant to the implied consent law, RCW 46.20.308; (2) interrogation of the arresting officer and suspect; (3) a preliminary "medical" examination, which appears to consist of taking the pulse rate; (4) eye examinations to test for nystagmus ; (5) "field sobriety tests";

(6) pulse, temperature, muscle tone and blood pressure; (7) pupil observations at varying light conditions; (8) observation of nose and mouth; (9) search for needle marks; (10) toxicological examination.

The defense has objected to the admissibility of the results of the drug recognition protocol and the officer's opinion, arguing that the results do not meet the Frye, test, Frye v. United States, 292 F.1013 (D.C. Cir. 1923), State v. Cauthron, 120 Wn.2d 879 (1993), and, further, that the results are insufficiently reliable to be admitted in evidence, EA 702.

Plaintiff maintains that the drug recognition protocol is neither scientific nor novel, and thus need not be subjected to the Frye test. Some of the ten steps, such as interrogation, observation of nose and mouth, search for needle marks, indeed are not scientific. These, by themselves, are admissible without foundation if deemed relevant. Other parts of the drug recognition protocol have previously been deemed admissible at a DUI trial, such as breath and blood tests, field sobriety tests and statements of defendants. It is clear, however, that nystagmus testing, pupillary reaction, pulse, temperature and blood pressure results all involve scientific components, and are thus subject to Frye analysis, see: Massachusetts v. Sands, 675 N.E.2d 370 (1997), Arizona v. Superior Court, 149 Ariz. 269, 280, 718 P.2d 171, 60 A.L.R.4th 1103 (1986), California v. Leahy, 8 Cal.4th 587, 882 P.2d 321 (1994), Idaho v. Gleason, 123 Idaho 62, 65, 844 P.2d 691 (1992), Illinois v. Buening, 229 Ill.App.3d 538, 545-546, 592 N.E.2d 1222 (1992), Kansas v. Witte, 251 Kan. 313, 329-330, 836 P.2d 1110 (1992), Louisiana v. Armstrong, 561 So.2d 883, 885 (La.Ct.App.1990), Missouri v. Hill, 865 S.W.2d 702, 703-704 (Mo.Ct.App.1993), Montana v. Clark, 234 Mont. 222, 226-227, 762 P.2d 853 (1988), Nebraska v. Borchardt, 224 Neb. 47, 58, 395 N.W.2d 551 (1986), New York v. Erickson, 156 A.D.2d 760, 549 N.Y.S.2d 182 (1989), Fargo v. McLaughlin, 512 N.W.2d 700, 705-707 (N.D. 1994), Yell v. Oklahoma, 856 P.2d 996 (Okla. Crim. App.1993), Oregon v. O'Key, 321 Or. 285, 899 P.2d 663 (1995), Pennsylvania v. Moore, 430 Pa.Super. 575, 635 A.2d 625 (1993), Emerson v. Texas, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994). Further, it is the totality of the drug recognition protocol that plaintiff maintains supports a conclusion of impairment. Since the protocol totality is indeed novel in support of an opinion of impairment, the entire protocol is subject to Frye analysis.

The scientific literature presented in support of admissibility of drug recognition protocol evidence as a whole was largely prepared for police or forensic purposes, see: Heishman, Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana, 20 J. Anal. Tox 468 (1996). This, by itself, should not preclude admissibility, see, e.g.: State v. Toennis, 52 Wn.App.176 (1988), State v. Mulder, 29 Wn.App. 513 (1978), State v. Cleveland, 58 Wn.App. 634 (1990), California v. Joehnk, 42 Cal.Rptr. 6, 15 (C. of A., 1995), nor should the mere fact that it is not universally accepted. Indeed, were it universally accepted, there would be no need for a hearing. While peer review is a factor in determining admissibility, Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L.Ed.2d 469 (1993), State v. Aiker, 123 Wn.2d 35a, 360 n.1 (1994), it is not dispositive.

Lay witnesses in Washington may testify to an opinion of alcohol intoxication, Seattle v. Heatley, 70 Wn.App. 573 (1993), State v. Brett, 126 Wn.2d 136 (1995), because the effects of alcohol are commonly known, State v. Smissaert, 41 Wn.App. 813 (1985). Courts in other jurisdictions have held that lay witnesses may testify to drug intoxication even absent independent evidence of drug use, Harris v. District of Columbia, 601 A.2d 21 (D.C. Ct. of App. 1991), Pennsylvania v. Yedinak, 676 A.2d 1217 (1996), Nebraska v. Lesac, 437 N.W.2d 517 (1989), North Carolina v. Adkerson, 368 S.E.2d 434 (1988), as long as a sufficient foundation is laid by the witness, establishing that the effects of drugs are sufficiently known to the witness, but see: Vermont v. Rifkin, 438 A.2d 1122 (1981). The plaintiff has established that a police officer trained in drug recognition protocol is more than a lay witness, i.e., has greater expertise in recognizing the physiological effects of certain controlled substances than the average citizen. The scientific literature cited establishes, without significant debate, that of the protocol elements, pulse rate, temperature, blood pressure, pupil reaction to light and blood and urine testing are symptoms or results of certain drug usage, and are not novel scientific tests, nor is the conclusion that they are impacted or result from drug use novel. Furthermore, nystagmus testing, if properly administered, and if combined with other evidence, meets the Frye standard as non-conclusive evidence that a central nervous system depressant is present and is having a physiological impact upon the optic nerve. It is not the presence of drugs but only that nystagmus, when it is present, may be an element supportive of a conclusion of drug impairment based on the elements of the protocol taken as a whole, and may also indicate which type of drug is involved, see: Minnesota v. Klawitter, 518 N.W.2d 577, 584 (1994), Whitson v. Arkansas, 863 S.W.2d 794 (1993), Schultz v. Maryland, 664 R.2d 60 (1995).

Following the protocol does not involve any significant

Minnesota v. Klawitter, supra, at 584 (1994).

The court concludes that where a witness is established as being trained in the use of the drug recognition protocol and administers it in proper manner and where there is evidence of drug use contemporaneous or near-contemporaneous with driving Missouri v. Meanor, 863 S.W.2d 884 (1993), then drug recognition protocol evidence is admissible as the basis for the witness' opinion that the defendants were under the influence.

Dated this 11th day of June 1997.

__________________________________

RONALD KESSLER, Judge